Non-pecuniary losses are personal injury losses for physical injuries that have not resulted in the injured person actually losing money. Their purpose is to compensate the injured person for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life.
Damages for these losses have a different purpose than other damages. There is no market in health and happiness. It is generally not possible to put the injured person back in the position he/she would have been in had the injury not occurred. The Court must fix a sum that is fair and reasonable.
There is no formula whereby a particular injury brings about a fixed and certain dollar recovery. Nor is there a number of dollars to be given in exchange for loss of happiness. Each award of non-pecuniary damages is custom made for a particular injured person. The Court must fix a sum that is fair and reasonable.
The award should compensate the injured person for the pain and suffering he/she has experienced from the date of the injury to present, as well as for the pain and suffering the Court concludes he/she is likely to experience in the future. In making the award, the Court should consider all the distress, or discomfort caused by the accident that has been felt by the injured person in the past and is likely to be felt by him/her in the future. If the Court is satisfied that the injuries have generally given the injured person’s distress or discomfort, even if the Court considers that most people would not have felt it so severely in the circumstances, the Court must award the injured person compensation for that pain and suffering.
The award should compensate the injured person for the negative effect of the injuries on his/her enjoyment of life. The Court should include an amount in its award to compensate the injured person if the Court concludes that because of the accident the injured person has been unable to enjoy his/her life in the way he/she formerly could, whatever life should offer.
In assessing damages, the Court may consider what use the injured person can make of the money that will be awarded. One purpose of making an award for pain injury and suffering is to substitute other amenities for those which the injured person has lost. It is meant to provide better physical arrangements beyond those directly arising from the injury (some “extras”) to make the injured person’s life more bearable.
On fixing a sum for damages with respect to pain injury and suffering, the Court knows that damages can never be adequate in the sense that a person would not undergo this pain and suffering in exchange for money.
For a jury trial, there is no formula that is given to them to guide the jury in fixing an appropriate sum. Each award of pain, injury, suffering and loss of enjoyment of life is custom-made for each injured person. The law does not have a specific table illustrating how a particular injury brings a fixed and certain dollar amount. A judge sitting alone without a jury is required to consider similar awards of other judges to maintain consistency with them. For juries, other trial judgments cannot be referred to.
The end result is jury awards are “all over the map” and rather unpredictable. Judge alone trials result in more predictable judgements.